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Donald Eugene HARDING

 
 
 
 
 

 

 

 

 
 
 
Classification: Serial killer
Characteristics: Robberies
Number of victims: 7
Date of murders: 1979 - 1980
Date of arrest: January 26, 1980
Date of birth: March 1, 1949
Victims profile: Men
Method of murder: Shooting - Asphyxiation
Location: Arkansas/New Mexico/California/Arizona, USA
Status: Executed by asphyxiation-gas in Arizona on April 6, 1992
 
 
 
 
 
 

On January 25, 1980, probably by posing as a security guard, Harding managed to gain entrance to 5: Tucson motel room of Robert Wise and Martin Concannon. Harding hogtied both men with multiple ligatures and shot each A the head and chest from close range. Harding also beat Wise with a lamp and stuffed sock into Concannon's mouth. He then took various articles belonging to both men and departed in Concannon's car.

About 8:00 p.m. that same day, Harding appeared at Wise's home in Mesa, knocked on the door, and asked Wise's wife whether "Bob" was them He had one of Wise's business cards in his left hand and kept his right hand in his pocket while he spoke with Mrs. Wise at the door. He left, probably because a child and a large dog were present. Harding was arrested in Flagstaff on January 26, 1980, while driving Concannon's car.

These are the other crimes that Donald Eugene Harding is accused of committing in the weeks after he sawed his way out of an Arkansas jail on Sept. 17, 1979:

  • Attempting to rob a prostitute in Chicago on Sept. 27, 1979.

  • Robbing a steakhouse in Omaha of $83,000 in cash and jewels, and pistol-whipping a patron on Sept. 30, 1979.

  • Holding up a Knoxville, Tenn., bank on Oct. 23, 1979.

  • The murder of Stanton Winston Blanton in Dallas on Dec. 10, 1979.

  • The kidnapping and robbery of the B.R. Baker family in their north Dallas home on Dec. 11, 1979.

  • Using a phony security guard's badge to enter insurance agent Ronald Svetgoff's motel room in Waco, Texas, before tying and gagging him, and stealing his car on Dec. 18, 1979.

  • Tying up Clayton Hall, his wife and another couple, and robbing them in Dallas on Dec. 24, 1979.

  • Robbing, hogtying and gagging Phillip Buss in a Salt Lake City hotel on Dec. 31, 1979, and stealing his car.

  • Robbing and murdering Charles Dickerson on Jan. 3, 1980, in a motel in South Lake Tahoe, Calif. Dickerson was found beneath a bed, bound and gagged, and dead of asphyxiation.

  • Pulling a .25-caliber automatic pistol on Frank Palmer of Sacramento, and tying him with cord and neckties from Palmer's apartment before stealing his car and credit card on Jan. 5, 1980.

  • Asking to rent an apartment from Lyle and Margaret Murphy of Bakersfield, Calif., and then stealing their money and their car. -- Forcing Joseph Wohlers and his uncle, Robert Stoick, into their Los Angeles hotel room at gunpoint on Jan. 6, 1980, and hogtying them before taking their credit cards, luggage and car.

  • Murdering and stealing a car from Gerald Huth, a businessman from Minnesota, on U.S. 101 near Paso Robles, Calif., on Jan. 10, 1980.

  • Kidnapping and robbing Shirley Land and four others in her husband's San Diego optometry clinic Jan. 21, 1980.

  • Using adhesive tape from Allan Gage's colostomy bag to tie his hands and feet while robbing him in a Phoenix motel room on Jan. 25, 1980. Gage suffocated on a sock stuffed in his mouth and secured with tape, and Harding later was convicted of the murder.

PROCEEDINGS

    Presiding Judge: Harry Gin
    Prosecutor:  Victor Wild
    Start of Trial: April 21, 1982
    Verdict: April 27, 1982
    Sentencing: May 26, 1982
    Execution:    April 6, 1992

Aggravating Circumstances

    Prior conviction punishable by life imprisonment
    Prior conviction involving violence
    Pecuniary gain
    Especially depraved

Mitigating Circumstances

    None

PUBLISHED OPINIONS

    State v. Harding, 137 Ariz. 278, 670 P.2d 383 (1983).
    Harding v. Lewis, 641 F. Supp. 979 (D. Ariz. 1986).
    Harding v. Lewis, 834 F.2d 853 (9th Cir. 1987).

Harding's gas-chamber execution lasted more than 11 minutes and was so gruesome that Arizonans voted to require prisoners condemned after November 1992 to be executed by lethal injection.

 
 

Last Meal

Several Fried Eggs, Several Strips of Bacon Toast, Butter, Honey and Orange Juice

 
 

Donald Eugene Harding (March 1, 1949 April 6, 1992) was convicted of the January 25, 1980 murders of Robert Wise and Martin Concannon. He was executed in 1992 by the State of Arizona by gas chamber. He became the first person to be executed in Arizona since 1976 when the death penalty was reinstated.

Harding's execution is also noteworthy in that his asphyxiation in the gas chamber took 11 minutes before death was finally confirmed. His death caused the reporters to be visibly upset.

This provided momentum for the movement to replace the gas chamber with lethal injection, and in November of that year, Arizona voters approved the change in method, although prisoners sentenced to death prior to November 15, 1992 could still choose the gas chamber. Harding thus became the last prisoner executed in Arizona's gas chamber without having lethal injection as an option (Karl-Heinz LaGrand chose the gas chamber in 1999).

 
 

Gruesome Death in Gas Chamber Pushes Arizona Toward Injections

The New York Times

April 25, 1992

The Arizona House of Representatives, its members disturbed by graphic accounts of the slow death of the first man executed in the state's gas chamber in 29 years, has voted to switch from gas to lethal injection.

The change to a method presumed to be more humane passed the House 41 to 7 on Thursday. The State Senate is considered likely to pass an identical measure. After Senate approval, the matter would be put before the voters in November as an amendment to the state Constitution, which now specifies the use of gas.

The change was proposed early this year but did not gain significant support until the April 6 execution of a triple murderer, Donald Eugene Harding, in the gas chamber at the state prison in Florence.

Mr. Harding was not pronounced dead until 10 1/2 minutes after two cyanide pellets were dropped into a bowl of sulfuric acid beneath his chair. Witnesses described a gruesome scene: Mr. Harding gasping, shuddering and desperately making obscene gestures with both strapped-down hands.

The campaign for change gained momentum on Tuesday when California had its first execution in 25 years. The California inmate, Robert Alton Harris, also took 10 minutes to die.

Arizona, Maryland and California are the only states where gas is the sole method of execution. In Mississippi, prisoners who were given death sentences before 1974 are executed by gas and prisoners sentenced since then are executed by injection.

The lethal-injection amendment was introduced early this year by State Representative Lela Steffey in response to complaints about the possible pollution involved in venting gas after an execution. Popular Support

Ms. Steffey said polls showed that a majority of state residents supported the change. Among the backers is State Attorney General Grant Woods, who acknowledged being disturbed by watching Mr. Harding die.

The chief opponent of the change was the head of the House Judiciary Committee, Patti Noland, a supporter of victims' rights whose son was shot to death last year during a traffic dispute.

But she changed her mind because, she said, victims would like to eliminate what they see as a delaying tactic by defense lawyers -- the argument that gas amounts to unconstitutionally cruel and unusual punishment.

Arizona hanged its murderers until 1930, when a condemned woman was accidentally decapitated. The state switched to the gas chamber in 1933 on the ground that it was more humane.

 
 

Arizona Conducts First Execution in 29 Years

April 7, 1992 - The New York Times

Arizona conducted its first execution in 29 years today, putting to death a triple murderer who made obscene gestures while he was strapped in the gas chamber.

The prisoner, Donald Eugene Harding, 43 years old, was executed just after midnight after a flurry of appeals. He was pronounced dead 10 1/2 minutes after cyanide pellets were dropped into a bowl of sulfuric acid beneath his chair to release the gas.

As he waited, Mr. Harding gestured as if to urge the executioner to get started. At least twice, once while in the throes of death, Mr. Harding extended his middle finger. At the time, he had straps across his forearms.

Mr. Harding was sentenced to die for the 1980 murders of two businessmen, Robert Wise of Mesa and Martin Concannon of Tucson, who were robbed, hogtied, beaten and shot in a Tucson hotel in 1980.

He was also convicted of killing a man in similar fashion a day earlier in a Phoenix motel and was linked to at least three other slayings, one in Arkansas and two in California.

It was the first execution in Arizona since 1963, when Manuel Silvas died in the gas chamber for fatally shooting his estranged pregnant girlfriend.

Mr. Harding became the 168th person put to death since the United States Supreme Court allowed states to resume use of capital punishment in 1976.

Since then, 36 states have put the death penalty back in the books, and Arizona became the 19th state to carry it out. Delaware conducted its first execution in nearly 46 years on March 14, when Steven Brian Pennell was put to death. On April 21, Robert Alton Harris is scheduled to die for the 1978 murder of two teen-agers in California's first execution in 25 years.

Late Sunday, the Arizona Board of Pardons and Paroles refused to recommend that Gov. Fife Symington grant Mr. Harding a reprieve or commute his sentence to life in prison.

Late-hour appeals were rejected in turn by the state Supreme Court, a Federal judge in Tucson, a Federal appeals court and the United States Supreme Court.

Defense lawyers had told the parole board that Mr. Harding suffered brain damage at birth that prevented him from restraining violent impulses. Prosecutors said the crimes were well-planned, not impulsive.

 
 

Execution Pace Climbs As Appeals Run Course

March 27, 1992 - The New York Times

Arizona is checking its gas chamber. The state may need it for the first time in 29 years on April 6, when it is scheduled to execute Donald Harding for the killing of three men.

California may soon carry out its first execution in a quarter-century.

And Delaware executed a killer this month for the first time since 1946.

Since the Supreme Court reinstated the death penalty in 1976, a half-dozen Southern states have performed most of the nation's executions. But now the pace of them is accelerating, and more states are making use of the death penalty.

A big reason is that prisoners are exhausting their appeals in state and Federal courts, a process that can last years, say lawyers who specialize in death penalty cases. Back by Public Demand

At the same time, the Supreme Court is spurning last-ditch requests for stays and curtailing condemned prisoners' access to Federal courts for appeals. Moreover, politicians are coming under pressure to take a hard line against crime.

"The American public wants it," said the Pennsylvania Attorney General, Ernie Preate. "They're fed up with the criminals getting away with 'murder' and they want to see them pay."

Every year criminals take about 22,000 lives, and every year 250 to 300 people are sentenced to die. More than 2,500 men and women are on the nation's death rows, according to the NAACP Legal Defense and Educational Fund.

Since the Supreme allowed states to resume capital punishment, 166 men and one woman have been executed.

Prosecutors have recourse to the death penalty in 36 states, the military and Federal courts; so far, 18 states have used it, with three-quarters of the executions in six states: Texas, Florida, Louisiana, Georgia, Virginia and Alabama.

"The death penalty is largely a symbolic method," said Ernest van den Haag, a retired Fordham University professor who writes about capital punishment and favors it. "In effect, we have a death penalty, but we don't really carry it out." 10 Men This Year

The numbers suggest the pace of executions is increasing: 10 men have been executed so far this year, compared with 14 all of last year and 23 in 1990.

Delaware had its first execution in almost 46 years on March 14, when Steven Brian Pennell, 34 years old, was put to death. He was sentenced to die for the murders of two women and had been convicted of two other killings.

In Arizona, Mr. Harding, 42, is scheduled to die next month for the 1980 robbery-slayings of three businessmen. And in California, Robert Alton Harris, 39, is condemned to die on April 21 for the 1978 murders of two teen-agers.

Mr. Van den Haag predicted that the number of executions could rise to 35 a year. But that would still be far fewer than in the mid-1930's, when executions reached a peak of 199 one year.

In the debate on capital punishment, advocates cite polls showing that up to 80 percent of the American people favor a death penalty. Opponents say support drops sharply when those polled are given an alternative or asked to specify which crimes should be punished by death.

Robert Domer, 72, of Canton, Ohio, who was on Ohio's death row in the mid-1960's for a year and a half, said advocates of the death penalty confused it with being tough on criminals. 'It's Grim. It's Grim.'

"Capital punishment to them means being tough, hard line," said Mr. Domer, who was acquitted after winning a new trial in the killing of a hitchhiker. "Most people don't have any idea. It's grim. It's grim."

The debate is being played out at the ballot box and in the statehouse.

Gov. William Weld of Massachusetts, a Republican, is seeking to bring back the death penalty there, where it was last used in 1947. A close vote is anticipated.

In New York, Gov. Mario M. Cuomo, a Democrat, has repeatedly rebuffed attempts by lawmakers to reinstate the death penalty, which was last used in the state in 1963.

The rising number of executions reflects the people's will, said Marvin White, a Mississippi assistant attorney general who favors capital punishment. "This is a democracy, you know," he said. "The people know what they're doing."

 
 

Execution American Style

By John Dean

Friday, Jun. 22, 2001

The Arizona Gas Execution

In 1992, just 18 days before Harris filed his case, Arizona had executed Don Eugene Harding in its gas chamber. Following that horrifying experience, Arizona's attorney general and state legislature put an end to the gas chamber as the only method of execution used by the state.

Why? An eyewitness account of Don Eugene Harding's execution recounted later in the Supreme Court's 1992 decision in Gomez v. U. S. District Court for the Northern District of California provides a breathtaking explanation:

When the fumes enveloped Don's head he took a quick breath. A few seconds later he again looked in my direction. His face was red and contorted as if he were attempting to fight through tremendous pain. His mouth was pursed shut and his jaw was clenched tight. Don then took several more quick gulps of the fumes.

At this point Don's body started convulsing violently . . . . His face and body turned a deep red and the veins in his temple and neck began to bulge until I thought they might explode.

After about a minute Don's face leaned partially forward, but he was still conscious. Every few seconds he continued to gulp in. He was shuddering uncontrollably and his body was racked with spasms. His head continued to snap back. His hands were clenched.

After several more minutes, the most violent of the convulsions subsided. At this time the muscles along Don's left arm and back began twitching in a wave-like motion under his skin. Spittle drooled from his mouth . . . .

Don did not stop moving for approximately eight minutes, and after that he continued to twitch and jerk for another minute. Approximately two minutes later, we were told by a prison official that the execution was complete.

Don Harding took ten minutes and thirty-one seconds to die.

Cruel and unusual? It takes one cold, mean s.o.b. to say it is not.

 
 

834 F.2d 853

Donald Eugene HARDING, Petitioner-Appellant,
v.
Samuel A. LEWIS, Respondent-Appellee.

No. 86-2057.

United States Court of Appeals,
Ninth Circuit.

Argued and Submitted March 11, 1987.
Decided Dec. 21, 1987.

Appeal from the United States District Court for the District of Arizona.

Before POOLE and BOOCHEVER, Circuit Judges, and DIMMICK,* District Judge.

BOOCHEVER, Circuit Judge:

Harding appeals the district court's dismissal of his petition for a writ of habeas corpus, 641 F.Supp. 979. He contends that he was not competent to waive his right to counsel at his criminal trial and that his waiver was not made knowingly and intelligently. He also argues that he waived his right to counsel at the recommendation of his attorney, Dan Cooper, and that this advice constitutes per se ineffective assistance of counsel. We affirm.

FACTS

The evidence that Harding brutally and callously murdered two men was overwhelming. District Judge Marquez detailed that evidence in his order denying Harding a writ of habeas corpus and we set forth that summary in the appendix to this opinion.

Harding was convicted of two counts of first degree murder, two counts of armed robbery, two counts of kidnapping, and one count of theft. He was sentenced to death on each of the murder convictions. For two years while awaiting trial, Harding was represented by a public defender, Dan Cooper.

During this period, Cooper filed thirty motions seeking, inter alia, to exclude evidence, to delay the trial, and to develop an insanity defense. These efforts proved futile. Cooper anticipated this and advised Harding that his only chance was to represent himself with the hope of injecting fundamental error in the trial, which would result in reversal of his convictions on appeal.

On March 15, 1982, Harding asked the state court to allow him to represent himself on an unrelated charge of deadly assault by a prisoner. Judge Gin, the state trial judge in both the assault case and the present case, questioned Harding about his education, his experiences with the criminal justice system, and the reasons for his wanting to defend himself. He also warned Harding of the serious penalty he faced if convicted. The court allowed Harding to represent himself on the assault charge and appointed Cooper as advisory counsel at Harding's request.

On March 23, 1982, eight days after Harding made his request to represent himself on the assault charge, Cooper asked Judge Gin to allow him to withdraw from the present case because Harding wanted to act as his own attorney. Judge Gin reviewed Harding's statements about his education and his familiarity with criminal procedure and warned him that he might receive the death penalty if convicted of the murders.

The judge, however, did not specifically refer to the difficulties faced by a lay person representing himself. Harding confirmed the judge's review of his background and stated he was absolutely certain he wanted to represent himself. Judge Gin denied the request, however, when Harding refused to sign the waiver of counsel form because it included the appointment of Cooper as advisory counsel.

Cooper apparently told Harding that Judge Gin would relieve Cooper as counsel only if Harding threatened him. Harding told Cooper to consider himself threatened. On April 15, 1982, Harding renewed his request to represent himself. Cooper filed a motion to withdraw for ethical reasons at approximately the same time. The presiding judge of the state court, Judge Druke, held a hearing with Cooper in his chambers and off the record.

Judge Druke informed Judge Gin that Harding had told Cooper that he (Harding) intended to commit a crime and Harding had refused to waive any potential conflict of interest that might arise during Cooper's continued representation. Judge Gin discussed with Harding his desire to represent himself and whether Harding would have to accept advisory counsel.

The judge then permitted Harding to represent himself but appointed Cooper as advisory counsel, stating that "the problem of threats" would persist no matter who represented Harding or acted as advisory counsel. Cooper continued to pursue some of the pretrial motions he had filed and served as advisory counsel throughout the trial, which started on April 20, 1982.

Harding was convicted on April 27, 1982. The court held a hearing on aggravating and mitigating circumstances for purposes of sentencing on May 26, 1982. The court had ordered a psychiatric evaluation before the hearing, but Harding would not speak to the doctor. The judge twice offered to reappoint counsel, but Harding refused. At the hearing the court again offered to appoint counsel and to permit more time to marshal evidence of mitigating circumstances. Harding declined counsel and presented no mitigating evidence. The court found four aggravating circumstances. Harding was sentenced to death on each of the murder counts.

The Arizona Supreme Court affirmed the convictions and the sentences, State v. Harding, 137 Ariz. 278, 670 P.2d 383 (1983); the Supreme Court of the United States denied certiorari, 465 U.S. 1013, 104 S.Ct. 1017, 79 L.Ed.2d 246 (1984). Harding filed for post-conviction relief under Arizona's rules of criminal procedure. Ariz.R.Crim.P. 32. The state court held an evidentiary hearing on the issue of whether Harding was denied a fair trial or effective assistance of counsel. The court denied relief and a subsequent petition for reconsideration; the Arizona Supreme Court declined to review the decision. On October 16, 1985, Harding filed an amended petition for a writ of habeas corpus. The district court dismissed the petition.

STANDARD OF REVIEW

We review de novo the district court's decision on a petition for a writ of habeas corpus. Chatman v. Marquez, 754 F.2d 1531, 1533-34 (9th Cir.), cert. denied, 474 U.S. 841, 106 S.Ct. 124, 88 L.Ed.2d 101 (1985). Factual findings made after a hearing by a state court in a proceeding for post-conviction relief are entitled to a presumption of correctness under 28 U.S.C. Sec. 2254(d).

ANALYSIS

Competency to Waive Counsel

Due process requires that a state court initiate a hearing on the defendant's competence to waive counsel whenever it has or should have a good faith doubt about the defendant's ability to understand the nature and consequences of the waiver, or to participate intelligently in the proceedings and to make a reasoned choice among the alternatives presented. See Chavez v. United States, 656 F.2d 512, 515 (9th Cir.1981); Sailer v. Gunn, 548 F.2d 271, 275 (9th Cir.1977); Sieling v. Eyman, 478 F.2d 211, 215 (9th Cir.1973). A good faith doubt exists when there is substantial evidence of incompetence. United States v. Veatch, 674 F.2d 1217, 1223 (9th Cir.1981), cert. denied, 456 U.S. 946, 102 S.Ct. 2013, 72 L.Ed.2d 469 (1982).

Evidence of incompetence includes, but is not limited to, a history of irrational behavior, medical opinion, and the defendant's behavior at trial. See Drope v. Missouri, 420 U.S. 162, 180, 95 S.Ct. 896, 908, 43 L.Ed.2d 103 (1975); Moore v. United States, 464 F.2d 663, 666 (9th Cir.1972). Whether a good faith doubt should have existed in the trial court's mind is not a factual finding entitled to the presumption of correctness under 28 U.S.C. Sec. 2254(d). See Sumner v. Mata, 455 U.S. 591, 597, 102 S.Ct. 1303, 1306, 71 L.Ed.2d 480 (1982) (per curiam).

Cooper moved to have Harding examined to determine if he was competent to stand trial and to investigate his mental condition at the time the crimes were committed with the view of developing an insanity defense. At the hearing on this motion, Cooper alleged that Harding suffered from brain disease and epileptic seizures but assured the state court that he was competent to stand trial.

On March 5, 1981, Harding moved to withdraw his motion for examination of his mental condition; the motion was denied. The court appointed two psychiatrists to examine Harding but he was uncooperative with them. The state court found Harding competent to stand trial and Harding does not appeal that finding.

As the district court points out, there was much evidence of Harding's competence to waive counsel that allayed any doubts created by the motion for a mental examination. Harding was responsive and rational at trial. He objected whenever the court or the prosecutor addressed their remarks to advisory counsel rather than to him. He expressed himself boldly and effectively when he chose to do so.

During Harding's efforts to dismiss Cooper and represent himself, he wrote a letter to Cooper. The letter acknowledged Cooper's "diligent efforts" and his pursuit of every opportunity to build a defense; it also admitted that there was no good defense and that he would be convicted no matter who defended him.

Harding's actions at trial and his written statements to Cooper indicate that Harding understood the consequences of waiving his right to counsel, made a reasoned choice from the limited alternatives available to him, and possessed sufficient intelligence to participate in the proceedings when he chose to do so. The state court did not err when it permitted Harding to represent himself without a hearing on his competence.

Knowing and Intelligent Waiver

The trial court must carefully balance the defendant's right to self-representation and its duty to ensure that defendant's waiver of the right to counsel is made with full awareness of the risks. United States v. Harris, 683 F.2d 322, 324 (9th Cir.1982). The preferable procedure for determining whether the waiver is made knowingly and intelligently is to discuss with the defendant in open court his understanding of the charges, the possible penalties, and the dangers of self-representation. United States v. Dujanovic, 486 F.2d 182, 188 (9th Cir.1973).

The failure to engage the defendant in such a colloquy does not necessitate reversal, however, if the record otherwise reveals a knowing and intelligent waiver. Cooley v. United States, 501 F.2d 1249, 1252 (9th Cir.1974), cert. denied, 419 U.S. 1123, 95 S.Ct. 809, 42 L.Ed.2d 824 (1975). This exception, however, should rarely be invoked. United States v. Aponte, 591 F.2d 1247, 1250 (9th Cir.1978).

On review, the issue is what the defendant understood about the proceedings, including the possible consequences, and the dangers of acting as his own attorney. United States v. Kimmel, 672 F.2d 720, 721-22 (9th Cir.1982). Whether the waiver was made knowingly and intelligently is a mixed question of law and fact which we review de novo. See Sumner, 455 U.S. at 597, 102 S.Ct. at 1306.

The state court inquired about Harding's education and familiarity with criminal procedures when he asked to represent himself on the assault charge.1 Eight days later, on March 23, 1982, when Cooper first tried to withdraw in the present case, the court warned Harding of the possible penalties and complexities in the action.2

The court did not, however, explicitly warn him of the difficulties faced by a lay person conducting his own defense. Preferably, the trial court should give such a warning on the record. Without such an explanation by the court of the difficulties and dangers of self-representation, we must look to " 'the particular facts and circumstances surrounding that case, including the background, experience and conduct of the accused.' " Kimmel, 672 F.2d at 722 (quoting Cooley, 501 F.2d at 1252).

The district court found that

[w]ithin three months of his assignment to Harding's case Cooper began discussing with him the possibility of representing himself. They discussed the problems and options available, these included the possibility of an insanity defense, the lack of a factual defense and the chances of receiving the death penalty. Cooper also explained to Harding the concept of fundamental error and the chance of appellate reversal through the right to counsel.

Order of April 30, 1986, at 24 (citations to exhibits omitted). These findings are supported by the record. Harding had the equivalent of a high school education and expressed himself well at trial and in his letter to Cooper. He also had sufficient experience with the criminal justice system to make one of his intelligence aware of the benefits of counsel. We agree with the district court that Harding understood the risks of self-representation.

Harding was adamant in his demands to represent himself. Cooper and Harding apparently concocted the story of threats to force Judge Gin to permit Cooper to withdraw. Unfortunately, the object of their scheme was not original:

It appears that Romero, by his own deliberate and intentional actions, seeks to insert built-in error in these proceedings, so as to postpone a final inquiry into his failure to comply with the tax laws of this country. Courts are established at public expense to try issues, not to play games.

United States v. Romero, 640 F.2d 1014, 1016 (9th Cir.1981).

Although our review of waiver of counsel in a capital case, by its very nature, must be more searching, we cannot countenance deliberate efforts to inject error. As the state court found when it denied Harding's motion for post-conviction relief, his waiver was an act of desperation done by a man with the intelligence to know he was in a situation requiring desperate measures. He knew he could be sentenced to death if convicted. He knew he would in all likelihood be convicted. We conclude that Harding made his waiver knowingly and intelligently.

Per Se Ineffective Assistance of Counsel

Most claims of ineffective assistance of counsel must be analyzed according to the two-part test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To succeed, the defendant must show that counsel's performance was deficient and that without counsel's errors there is a reasonable probability that the result would have been different. Id. at 687, 694, 104 S.Ct. at 2064, 2068. Harding, realizing that he cannot demonstrate that his waiver prejudiced the result, argues that Cooper's recommendation to waive counsel should be presumed prejudicial. See United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984).

In Cronic, the Supreme Court reiterated that, in most cases, a defendant must demonstrate that the alleged error of his attorney had "some effect ... on the reliability of the trial process." Id. at 658, 104 S.Ct. at 2046. It created an exception, however, for those "circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified." Id. (footnote omitted).

Such circumstances are the complete absence or denial of counsel at a critical stage of trial, and situations where the likelihood that counsel could have been an effective adversary was so remote that the trial was inherently unfair. Id. at 659-61, 104 S.Ct. at 2047-48. "Apart from circumstances of that magnitude, however, there is generally no basis for finding a Sixth Amendment violation unless the accused can show how specific errors of counsel undermined the reliability of the finding of guilt." Id. at 659 n. 26, 104 S.Ct. at 2047 n. 26.

We conclude that Cooper's advice of self-representation to Harding should not be presumed prejudicial. In this case, it is not unduly burdensome for us to assess the effect of that advice on the outcome of Harding's trial. If a legal or factual defense exists such advice is clearly prejudicial. Harding does not assert that any such defense was available, and we find none after our own examination of the evidence.

If the defendant did not understand counsel's reasons for suggesting this strategy and the risks involved in pursuing it, he is entitled to the relief of the writ. Cf. Martin v. Rose, 744 F.2d 1245, 1249-51 (6th Cir.1984) (counsel, mistakenly believing that participating in the trial would waive certain pretrial motions, did not explain to his client his failure to participate or the consequences of it; defendant entitled to habeas corpus relief under the Strickland test because waiver of counsel was not made knowingly or intelligently). We have already determined that Harding was a knowing and willing participant in this scheme. He knew "what he [was] doing and his choice [was] made with eyes open." Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 241, 87 L.Ed. 268 (1942); Dujanovic, 486 F.2d at 187.

There is another reason for refusing to presume prejudice in this case. The presumption would create a foolproof defense. See Martin, 744 F.2d at 1251-52. If Harding had been successful in creating fundamental error by representing himself, he would have been entitled to a new trial. If prejudice is presumed because Cooper advised him to do so,3 habeas corpus relief would entitle him to a new trial or release from custody even though he otherwise failed in his attempt to create an unfair trial. We cannot allow this tempting gambit for counsel and client.

CONCLUSION

We conclude that Harding was competent to waive his right to counsel, that he did so knowingly and intelligently, and that he was not prejudiced by Cooper's advising him to do so. The denial of the writ of habeas corpus is therefore

AFFIRMED.

*****

APPENDIX

On January 26, 1980, the Tucson Police Department was called to investigate suspicious circumstances at the La Quinta Motel in Tucson, Arizona. The Officers involved discovered two bodies, one located next to the bed and the other in the bathroom. The bodies were identified as Martin L. Concannon and Robert A. Wise.

The jury was shown approximately 150 pictures depicting the room where the crime occurred and the autopsies performed on the victims. The pictures demonstrated that the victims were bound repeatedly with various types of ligatures.

The body of Martin L. Concannon was found on the floor of the bathroom covered with a bedspread. His body had been repeatedly bound, two men's socks stuffed into his mouth and a pillow placed under his head. Robert Wise's head was tethered to the bed and he was hog-tied with his feet bound together and tied with a sheet to his elbows. A belt had been wrapped around his wrists which constricted his hands.

Blood splattered on the walls indicated that Wise was beaten repeatedly. Pieces of teeth were found underneath his head. Small chips of synthetic wood were found under the body which were identified as pieces from the base of the hotel room lamp. Chemical analysis showed human blood on the base of this lamp. The harp of the lamp was found near Wise's body. The lamp itself had been plugged back into the wall.

Identifiable prints were taken from the do-not-disturb sign found outside the door, a small glass on the table near the bed, cellophane wrapping from a package of Winston cigarettes and off the top part of the lampshade. All four of these fingerprints were identified as matching those of Donald Harding. Fingerprints were also removed from the telephone receiver, a light bulb and an ashtray. These prints were also identified as matching those of Donald Harding.

The pathologist testified that Robert Wise was shot in the chest from front to back and in the left temple. The wounds revealed that he was shot with the muzzle of the gun only a few inches from the skin. He sustained a multiple fracture to the jaw and his teeth had been broken by repeated impacts with a blunt object.

A tether had been placed around Wise's neck with enough force to create a U-shaped abrasion, which penetrated the skin, causing the blood vessels to rupture. The victims wrists had been tightly bound. Wise's death was caused by the bullet wound to the chest which perforated the spinal cord. The time of death was estimated by the pathologist at between 1 p.m. and 7 p.m. on January 25, 1980.

The autopsy performed on Martin Concannon showed that his death was also caused by a shot to the chest which perforated the spinal cord. He had also been shot in the temple. The autopsy revealed that the two socks which had been pushed to the back of his throat had covered all breathing passages. Hemorrhaging in the scalp tissue, caused by lack of oxygen, indicated that Concannon had not died immediately.

Jeri Wise testified that her husband was the district manager for KAR Products. She testified that he left the 24th of January to see Marty Concannon, one of his salesmen, and to make a call in Ft. Huachuca. Mrs. Wise expected him to return the next day, January 25, around 6:30 p.m.

At approximately 8:40 on that night a man came to the Wise's home and asked if Bob was there. Mrs. Wise testified that the man was holding one of her husband's business cards and acting very nervous. She stated that he was wearing a rust colored jacket and a burgundy shirt. The man left the Wise's home when she told him she expected her husband home soon as he was already overdue. Mrs. Wise positively identified Donald Harding as the man at her door that night.

January 26, 1980, a Northern Arizona University police guard was assigned to a parking lot near the athletic dome on the NAU campus to ensure that only members of the booster club parked in the lot. He observed a man driving an Oldsmobile, with Ohio plates, pull into the lot. The guard told the driver that he would not be allowed to park in the lot. The driver asked if there was a place he could park and the guard suggested a lot north of the dome. The guard identified the driver of the car as Donald Harding. The Oldsmobile he was driving belonged to Martin Concannon.

The guard testified that Harding appeared a little strange because he spoke with a Southern accent but was driving a car with Ohio plates. He testified Harding was also wearing two jackets and had numerous articles in the back seat. The guard ran a warrants check on the car and was told that it had been stolen from Tucson. He called for back up units and they arrested Harding.

A body search revealed a .25 automatic in Harding's jacket pocket. A ballistics check run on the gun showed that it was the same weapon used to kill Concannon and Wise in Tucson. Two security badges, a wallet and an identification card issued to Ronald Svetgoff were also found on Harding. Harding told the NAU police that he was Svetgoff but looked different because he had lost some weight and changed his hair.

Robert Svetgoff testified that he was robbed in a motel in Waco, Texas on December 18, 1979 by a man he identified as Donald Harding. He said that Harding approached him, showed him a security badge, identified himself as a security officer and demanded that Svetgoff produce identification.

Svetgoff identified one of the badges found on Harding as the one used during this robbery. When Svetgoff opened the door to his hotel room, Harding pulled a gun, forced Svetgoff onto the floor and tied him up with a tie, a torn dress shirt and his jumprope. Harding put a sock in Svetgoff's mouth, wrapped a t-shirt around that and then tied a belt around his mouth. Harding then rolled Svetgoff in a bedspread, dragged him into the bathroom and placed a pillow under his head. Harding stole all of Svetgoff's clothes and left in his car.

The Tucson police executed a search warrant on the car that Harding was driving when he was arrested. In it were found; 1) a tan attache case (which Mrs. Wise identified at trial as her husband's), 2) loose credit cards in the name of Robert Wise and 3) a box of pens and a memo pad with KAR logo.

The Tucson police obtained clothing from the Coconino County Jail which included a burgundy colored long-sleeved shirt, a pair of black shoes and two jackets. Jeri Wise identified the burgundy shirt as the one Harding was wearing when he came to her house. Chemical tests performed on this shirt showed the presence of human blood. Inside one of the jackets was Robert Wise's drivers license and page C-D torn out of an address book with the names of Pam and Martin Concanon circled.

Two statements made by Harding were introduced into evidence at the trial. The first was made while Harding was being transported from Flagstaff to Tucson. A Tucson police detective testified that it was a cold day and Harding was wearing only a short-sleeved shirt. The detective opened his suitcoat to protect him from the wind while they waited for the airplane. The detective testified that Harding looked at him and said "you don't need to do that, I deserve whatever I get."

Harding made a second statement in Tucson. The same detective testified that Harding asked if he could get some of his clothes returned and that the detective told him that the police had to keep the clothes in order to look for evidence. Harding told the detective that he might find something on the burgundy shirt and shoes but the rest of the clothing had not been worn.

Order of April 30, 1986, at 2-7 (citations to exhibits omitted).

*****

*

Honorable Carolyn R. Dimmick, United States District Judge, Western District of Washington, sitting by designation

1

The trial court made the following inquiry when Harding requested to represent himself on the assault charge:

THE COURT: Mr. Harding, is that correct, you want to represent yourself in this case?

MR. HARDING: Yes, I do.

THE COURT: Let me ask you, Mr. Harding, how much education have you had?

MR. HARDING: GED, high school equivalent.

THE COURT: And do you--let's see, have you been tried before on any kind of charge, any kind at all?

MR. HARDING: Yes.

THE COURT: So you think--do you know the ropes legally pretty much as to what the procedures are and that sort of thing?

MR. HARDING: I think so.

THE COURT: Are you unhappy with the Mr. Cooper's representation or what?

MR. HARDING: I am unhappy with the way--that the charge is being processed. This is about eight months old. I never waived speedy trial on it and to my knowledge the prosecution--it has been in suspended animation for eight months now and I don't see any point in that. I would like to enter an oral motion for immediate trial on that.

....

THE COURT: Well, you know Mr. Harding, perhaps you--maybe you don't appreciate the fact that delay often works in your favor.

....

THE COURT: You realize, Mr. Harding, that, you know, you are going to be carrying the ball then hereafter. I am not going to stop the middle of the trial and you say: Hey, let's put Cooper on the firing line here now. You know you are it.

MR. HARDING: I understand that. I--

....

THE COURT: Do you realize, sir, that if the State proves that these were offenses of a dangerous nature and you were previously convicted of a felony that this prison term is mandatory?

MR. HARDING: Twenty-five to life.

THE COURT: You understand that?

MR. HARDING: Yes.

THE COURT: And you are still willing--you are still willing to represent yourself?

MR. HARDING: Absolutely.

Exhibit 24 at 225-41. [See EOR at 166-167]

2

When Harding sought to waive counsel in the present case, the following colloquy took place:

MR. COOPER: Your Honor, this is my application to withdraw on 2597. You granted the motion on the other CR number ten days or so ago. Mr. Harding informed me after that hearing ten days ago that on the murder case he desire to represent himself as well and does not want the services of an attorney, and particularly of me or of our office.

THE COURT: Is that correct, Mr. Harding?

MR. HARDING: Yes.

THE COURT: Mr. Harding, you know you are charged in 2597 with first degree murder. That could result in the death sentence. I just remind you of this because it is a terribly serious terribly complex case. Are you quite certain you want to represent yourself in a matter like that?

MR. HARDING: Absolutely.

THE COURT: Let's see, I did ask you some questions last time about your education. I believe you told me--.

MR. HARDING: High school equivalent.

THE COURT: High school equivalent. And you indicated you thought you had a pretty good familiarity with criminal procedure and rules. Do you want Mr. Cooper to be your advisor counsel in this thing?

MR. HARDING: No, I wouldn't care to have an advisor.

....

Exhibit 24 at 245-54. [See EOR at 167-168]

3

This opinion does not furnish an appropriate occasion to comment on the propriety of Cooper's conduct. We take judicial notice, however, that at the time Cooper advised Harding, Arizona Disciplinary Rules 1-102(A)(4) and (5) provided that an attorney shall not "[e]ngage in conduct involving dishonesty, fraud, deceit, or misrepresentation" or "[e]ngage in conduct that is prejudicial to the administration of justice." Rule 7-102(A)(5) further provided that a lawyer shall not "knowingly make a false statement of law or fact."

 

 

 
 
 
 
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